USA V. MIGUEL VASQUEZ
Warrant had probable cause, as informants identified the deft as the leader of a gang, and Magistrate could reasonably conclude that records would be found at his house.
Warrant was not overbroad, as it was only for documents relating to the gang.
No error in denial of Franks hearing to challenge informant's characterization of him as "president" of the group, as mere officer would have sufficed for the search.
Sufficient Evidence.
Sentence substantively reasonable, even though several RICO defts in same group got less.
Recent Precedential Slip Opinions from the U.S. Circuit Courts of Appeals.
Monday, August 15, 2011
Ninth Circuit -- USA V. MIGUEL VASQUEZ
Labels:
Crim,
Fourth Amendment,
Sentencing,
Sufficient Evidence
Ninth Circuit -- MICHAEL HOWARD V. OREGONIAN PUBLISHING CO.
MICHAEL HOWARD V. OREGONIAN PUBLISHING CO.
Where companies purchase drivers license data for the purpose of an undefined future use, such acquisition is not a violation of Act which specifies the authorized uses of such data, as stockpiling is not a use.
Where companies purchase drivers license data for the purpose of an undefined future use, such acquisition is not a violation of Act which specifies the authorized uses of such data, as stockpiling is not a use.
Ninth Circuit -- IN DEFENSE OF ANIMALS V. UNITED STATES DEPARTMENT OF THE INTERIOR
IN DEFENSE OF ANIMALS V. UNITED STATES DEPARTMENT OF THE INTERIOR
The Misfits II: Likely Success on the Merits
Interlocutory appeal seeking preliminary injunction barring roundup of wild horses and burros dismissed as moot, as the roundup has already happened. Balance of civil action still pending.
Dissent: Although the roundup happened, the animals are still in temporary holding, and relief is still possible.
The Misfits II: Likely Success on the Merits
Interlocutory appeal seeking preliminary injunction barring roundup of wild horses and burros dismissed as moot, as the roundup has already happened. Balance of civil action still pending.
Dissent: Although the roundup happened, the animals are still in temporary holding, and relief is still possible.
Ninth Circuit -- NDOC V. RUSSELL COHEN
NDOC V. RUSSELL COHEN
Ban on inmates possessing typewriters upheld.
1 - Not unduly retaliatory, as it was enacted after a murder using one.
2 - No violation of access to the courts, as although the Nevada Supreme Court requires typewritten briefs, inmates' injury is speculative, as no appeals are in the record.
3 - No 14th Amendment violation as it is a rule of general application
4 - No error in cutting short discovery.
Ban on inmates possessing typewriters upheld.
1 - Not unduly retaliatory, as it was enacted after a murder using one.
2 - No violation of access to the courts, as although the Nevada Supreme Court requires typewritten briefs, inmates' injury is speculative, as no appeals are in the record.
3 - No 14th Amendment violation as it is a rule of general application
4 - No error in cutting short discovery.
Eighth Circuit -- United States v. David West Dixon
United States v. David West Dixon
Crim -
1. Sufficient Evidence
2. No error in court not dismissing sua sponte a venireman who indicated possible bias towards police.
3. No procedural/substantive error in sentence.
Crim -
1. Sufficient Evidence
2. No error in court not dismissing sua sponte a venireman who indicated possible bias towards police.
3. No procedural/substantive error in sentence.
Labels:
Crim,
Jury Selection,
Sentencing,
Sufficient Evidence
Eighth Circuit -- Jerome C. Anderson v. Hess Corporation
Jerome C. Anderson v. Hess Corporation
Under North Dakota law, a drilling company need not spud the well to fulfill a boilerplate drilling requirement in a mineral lease.
No error in District Court not certifying questionn to state supreme court, given plain meaning and caselaw.
Under North Dakota law, a drilling company need not spud the well to fulfill a boilerplate drilling requirement in a mineral lease.
No error in District Court not certifying questionn to state supreme court, given plain meaning and caselaw.
Eighth Circuit -- United States v. Traves Rush
United States v. Traves Rush
Initial encounter was consensual - followed by marked police car, deft had to walk past armed officer in his path. In that he could have done so, consensual conversation.
Placing deft in back of police car not unreasonable after discovery of ~2K, given bank robbery within the hour.
Exclusion of radio calls saying getaway car was red Chrysler as hearsay (when introduced by deft to show unreasonableness of initial seizure of blue Chrysler) harmless.
Initial encounter was consensual - followed by marked police car, deft had to walk past armed officer in his path. In that he could have done so, consensual conversation.
Placing deft in back of police car not unreasonable after discovery of ~2K, given bank robbery within the hour.
Exclusion of radio calls saying getaway car was red Chrysler as hearsay (when introduced by deft to show unreasonableness of initial seizure of blue Chrysler) harmless.
Eighth Circuit -- United States v. Edward Boroughf
United States v. Edward Boroughf
Appellate waiver enforced over Anders challenge to reasonableness of sentence..
No error in prior being counted despite being similar to and within timeframe of presently charged conspiracy, as court could reasonably find it to be unrelated.
Appellate waiver enforced over Anders challenge to reasonableness of sentence..
No error in prior being counted despite being similar to and within timeframe of presently charged conspiracy, as court could reasonably find it to be unrelated.
Eighth Circuit -- Ninoska Lopez-Amador v. Eric H. Holder Jr
Ninoska Lopez-Amador v. Eric H. Holder Jr
Immigration -
Insufficient past persecution when generally targeted by snipers at a demonstration & encountering vehicle checkpoints.
Insufficient likelihood of future persecution based on sexuality, as the only evidence in the record refers to transgender individuals.
Immigration -
Insufficient past persecution when generally targeted by snipers at a demonstration & encountering vehicle checkpoints.
Insufficient likelihood of future persecution based on sexuality, as the only evidence in the record refers to transgender individuals.
Seventh Circuit -- Kenneth Carter v. Pension Plan of A Finkl
Kenneth Carter v. Pension Plan of A. Finkl
Where a pension plan starts windup but then reverses, an amendment to the Plan offering annuities on windup irrespective of employment status with the company:
(1) Doesn't violate ERISA, as it's nothing to do with retirement - workers are hoping to gain the annuity without retiring.
(2) Doesn't violate the anti-cutback rules within the plan, as Administrator could reasonably rule that it was only triggered by the windup that didn't happen.
No error in calculation of certain kinds of bonuses as income for purposes of the plan, given longstanding practice of employer.
No success on the merits means no fee for you.
Where a pension plan starts windup but then reverses, an amendment to the Plan offering annuities on windup irrespective of employment status with the company:
(1) Doesn't violate ERISA, as it's nothing to do with retirement - workers are hoping to gain the annuity without retiring.
(2) Doesn't violate the anti-cutback rules within the plan, as Administrator could reasonably rule that it was only triggered by the windup that didn't happen.
No error in calculation of certain kinds of bonuses as income for purposes of the plan, given longstanding practice of employer.
No success on the merits means no fee for you.
Seventh Circuit -- USA v. Charles Robertson
USA v. Charles Robertson
Where resentencing for violation of supervised release departs from the range guidelines and the sentencing judge doesn't even reference the guidelines in sentencing, vacate & remand.
(Till Eulenspiel moment: Deft served ~10 yrs in prison for growing MJ, arrested in last days of 8 yrs. supervised release while tending MJ plants. When asked why, he said that he liked the way the plants looked, and he liked to smoke them.)
Where resentencing for violation of supervised release departs from the range guidelines and the sentencing judge doesn't even reference the guidelines in sentencing, vacate & remand.
(Till Eulenspiel moment: Deft served ~10 yrs in prison for growing MJ, arrested in last days of 8 yrs. supervised release while tending MJ plants. When asked why, he said that he liked the way the plants looked, and he liked to smoke them.)
Sixth Circuit -- USA v. Michael Judge
USA v. Michael Judge
No error in not explaining sentence sufficiently, as court dealt with all args advanced by deft.
No error (abuse of discretion standard) in court possibly considering a future 35(b) motion to reduce sentence when imposing initial sentence.
No error in not explaining sentence sufficiently, as court dealt with all args advanced by deft.
No error (abuse of discretion standard) in court possibly considering a future 35(b) motion to reduce sentence when imposing initial sentence.
Fourth Circuit -- US v. Tyerail Massenburg
US v. Tyerail Massenburg
Lack of eye contact and standing a bit apart from the others is insufficient grounds for a frisk during a Terry stop where the police are responding to an anonymous report of shots fired.
The collective knowledge rule (knowledge of instructing officer imputed to executing officer) does not operate in the aggregate (the sum of all knowledge possessed by policemen at the scene) - some degree of connection or instruction is required.
Lack of eye contact and standing a bit apart from the others is insufficient grounds for a frisk during a Terry stop where the police are responding to an anonymous report of shots fired.
The collective knowledge rule (knowledge of instructing officer imputed to executing officer) does not operate in the aggregate (the sum of all knowledge possessed by policemen at the scene) - some degree of connection or instruction is required.
Third Circuit -- People of the Virgin Islands v. Tydel John
People of the Virgin Islands v. Tydel John
No reasonable reliance exception for faulty search warrant for pr0n based on investigation of child abuse.
No reasonable reliance exception for faulty search warrant for pr0n based on investigation of child abuse.
First Circuit -- Mississippi Public Employees v. Boston Scientific Corp.
Mississippi Public Employees v. Boston Scientific Corp.
No reasonable evidence of enough scienter after initial discovery where:
- Manufacturer contemplated change in device which might or might not necessitate a recall - no evidence as to ultimate impact on stock viability.
- Manufacturer insisted that greater physician familiarity with the device would reduce the problem of sticky stents. (It didn't lull the market to any fundamental problems with the device.)
- Partial recall publicly described by CEO as "not tip of the iceberg" - CEO said privately that he wasn't confident the situation was under control.
A/C Privilege -
The fact that discussions were about how to avoid future problems does not remove the privilege.
No t improper for company to direct all relevant internal communication via the GC's office - such funnelling does not manufacture privilege.
No reasonable evidence of enough scienter after initial discovery where:
- Manufacturer contemplated change in device which might or might not necessitate a recall - no evidence as to ultimate impact on stock viability.
- Manufacturer insisted that greater physician familiarity with the device would reduce the problem of sticky stents. (It didn't lull the market to any fundamental problems with the device.)
- Partial recall publicly described by CEO as "not tip of the iceberg" - CEO said privately that he wasn't confident the situation was under control.
A/C Privilege -
The fact that discussions were about how to avoid future problems does not remove the privilege.
No t improper for company to direct all relevant internal communication via the GC's office - such funnelling does not manufacture privilege.
Second Circuit -- Goodrich v. LIRR Co.
Goodrich v. LIRR Co.
For IIED liability under FELA, the conduct must occur within the zone of physical danger contemplated by the statutory scheme; a railroad electrician whose co-worker publicly identified him as HIV-positive cannot pursue a claim.
For IIED liability under FELA, the conduct must occur within the zone of physical danger contemplated by the statutory scheme; a railroad electrician whose co-worker publicly identified him as HIV-positive cannot pursue a claim.
Second Circuit -- John Wiley & Sons, Inc. v. Supap Kirtsaeng
John Wiley & Sons, Inc. v. Supap Kirtsaeng
Big holding - The First Sale Doctrine of S109 does not apply to works manufactured outside of the United States. S602, Which would otherwise bar the unauthorized importation of such works, governs.
No plain error in not giving "no set law on this yet" jury instruction, as deft had chance to present that theory during trial.
No error in admitting evidence of gross revenues, which included books made by other companies.
Dissent: No requirement in statute that the works be produced domestically.
Big holding - The First Sale Doctrine of S109 does not apply to works manufactured outside of the United States. S602, Which would otherwise bar the unauthorized importation of such works, governs.
No plain error in not giving "no set law on this yet" jury instruction, as deft had chance to present that theory during trial.
No error in admitting evidence of gross revenues, which included books made by other companies.
Dissent: No requirement in statute that the works be produced domestically.
Second Circuit -- Briscoe v. City of New Haven
Briscoe v. City of New Haven
In Ricci, the Supreme Court held that a city could not refrain from certifying firefighter exam results from fear of a disparate impact Title VII suit, even thogh certification risked a disparate treatment suit.
Held: (1) The dictum in Ricci does not shield the city by nonparty preclusion from a disparate impact suit; (2) Crossing the streams of disparate impact statutory law and disparate treatment caselaw would be a really, really bad idea; (3) The one-line dictum is insufficient grounds for a 12(b)(6) dismissal by the lower court.
In Ricci, the Supreme Court held that a city could not refrain from certifying firefighter exam results from fear of a disparate impact Title VII suit, even thogh certification risked a disparate treatment suit.
Held: (1) The dictum in Ricci does not shield the city by nonparty preclusion from a disparate impact suit; (2) Crossing the streams of disparate impact statutory law and disparate treatment caselaw would be a really, really bad idea; (3) The one-line dictum is insufficient grounds for a 12(b)(6) dismissal by the lower court.
Friday, August 12, 2011
DC Circuit
The DC Circuit server is down at 8:46PM ET -- your correspondent is therefore going to the gym and will add these cases next week.
Eleventh Circuit -- State of Florida v. Dept of HHS
Q: What's 304 pages long and holds the individual health care mandate unconstitutional?
A: State of Florida v. Dept of HHS
A: State of Florida v. Dept of HHS
Tenth Circuit -- United States v. Hoskins (Jodie)
United States v. Hoskins (Jodie)
No error in court declining to consider hypothetical tax returns and instead accepting gov'ts estimate of loss.
No error in court declining to consider hypothetical tax returns and instead accepting gov'ts estimate of loss.
Tenth Circuit -- Chevron Mining Inc. v. United Mine Workers of America
Chevron Mining Inc. v. United Mine Workers of America
Arbitrator's resolution draws its essence from the CBA.
Arbitrator's resolution draws its essence from the CBA.
Ninth Circuti -- STEVE BALDWIN V. KATHLEEN SEBELIUS
STEVE BALDWIN V. KATHLEEN SEBELIUS
(Quick skim of intro)
No standing for challenges to the health care act, as individual has not proved that he doesn't & will not have insurance and company hasn't proved it is of sufficient size.
(Quick skim of intro)
No standing for challenges to the health care act, as individual has not proved that he doesn't & will not have insurance and company hasn't proved it is of sufficient size.
Ninth Circuit -- NYOKA LEE V. CORINTHIAN COLLEGES
NYOKA LEE V. CORINTHIAN COLLEGES
(Very quick skim)
College alleged to have paid recruiters in violation of statute --
Given vagueness of criteria, compensation ratings do not find safe harbor, as it might shield impermissible acts.
Leave to amend the complaint should have been granted - scienter may be established in subsequent amendments.
(Very quick skim)
College alleged to have paid recruiters in violation of statute --
Given vagueness of criteria, compensation ratings do not find safe harbor, as it might shield impermissible acts.
Leave to amend the complaint should have been granted - scienter may be established in subsequent amendments.
Ninth Circuit -- USA V. CARLOS MARGUET-PILLADO
USA V. CARLOS MARGUET-PILLADO
Error in not giving derivative citizenship jury instruction, as it had not been conclusively established in first trial.
Error in not giving derivative citizenship jury instruction, as it had not been conclusively established in first trial.
Ninth Circuit -- ALADS V. COUNTY OF LOS ANGELES
ALADS V. COUNTY OF LOS ANGELES
Policemen suspended during pendency of felony charge against them and who retired before resolution of the question may pursue S1983 claim for lack of sufficient post-termination processes.
Dissent - no protected interest in being paid while in the dock.
Policemen suspended during pendency of felony charge against them and who retired before resolution of the question may pursue S1983 claim for lack of sufficient post-termination processes.
Dissent - no protected interest in being paid while in the dock.
Ninth Circuit -- PINTO V. HOLDER
PINTO V. HOLDER
Where BIA hold for deportation and remands for IJ consideration of voluntary departure, order is sufficiently final.
Where BIA hold for deportation and remands for IJ consideration of voluntary departure, order is sufficiently final.
Eighth Circuit -- United States v. Kevin Price
United States v. Kevin Price
No error in sentencing - deft argument that semiautomatics are less dangerous than handguns is unavailing.
No error in sentencing - deft argument that semiautomatics are less dangerous than handguns is unavailing.
Eighth Circuit -- United States v. Danny Reaves
No error in limiting cross, as sufficient ev against witness was already in record, No Brady violation as not material, No error in jury instruction on witness tampering, sufficient evidence, ineffective assistance should be addressed on collateral challenge.
Eighth Circuit -- Joan Najbar v. The United States
Joan Najbar v. The United States
Postal matter exception to FTCA bars suit against gov't for returning a soldier's letter to sender marked "deceased."
Postal matter exception to FTCA bars suit against gov't for returning a soldier's letter to sender marked "deceased."
Eighth Circuit -- Vincent Ofor v. U.S. Bank, N.A.
Vincent Ofor v. U.S. Bank, N.A.
Signatures on mortgage forms & power of atty were kosher / not timely raised.
Sufficient TILA statutory notification on foreclosure.
Signatures on mortgage forms & power of atty were kosher / not timely raised.
Sufficient TILA statutory notification on foreclosure.
Eighth Circuit -- NLRB v. Leiferman Enterprises, LLC
NLRB v. Leiferman Enterprises, LLC
Substantial evidence for NLRB fact-intensive finding of successor-in-interest. Employer claims of insufficient glazier continuity unavailing.
Substantial evidence for NLRB fact-intensive finding of successor-in-interest. Employer claims of insufficient glazier continuity unavailing.
Eighth Circuit -- Carolyn Schubert v. Auto Owners Insurance Company
Carolyn Schubert v. Auto Owners Insurance Company
Good-faith allegations of pleading as to vexatious refusal to pay claim suffice for establishing 75K amount in controversy.
Insurance provision limiting recovery to half of policy where interest in the property has substantially changed is void since contrary to state law.
Policy provision is not overly vague.
Good-faith allegations of pleading as to vexatious refusal to pay claim suffice for establishing 75K amount in controversy.
Insurance provision limiting recovery to half of policy where interest in the property has substantially changed is void since contrary to state law.
Policy provision is not overly vague.
Eighth Circuit -- G. Latta Bachelor v. Regions Bank
G. Latta Bachelor v. Regions Bank
Despite possible mismanagement of the estate, executrix' actions did not vitiate the spendthrift thrift of which she was the beneficiary - its proceeds can therefore not be attached by executrix' creditors.
Despite possible mismanagement of the estate, executrix' actions did not vitiate the spendthrift thrift of which she was the beneficiary - its proceeds can therefore not be attached by executrix' creditors.
Eighth Circuit -- Donald Moeller v. Douglas Weber
Donald Moeller v. Douglas Weber
Where death penalty juror asks about possibility of parole and judge refers them to the verdict form which says "life imprisonment without parole," no clear violation of law.
Nonparticipation in Daubert hearing & lax challenge to soil samples were strategic choices, not ineffective assistance .
No abuse of discretion in allowing expert to work for both sides.
Aggravating factors did not have to be in the indictment when included in a notice 8 months before trial.
[Thou shalt not kill. - TMB]
Where death penalty juror asks about possibility of parole and judge refers them to the verdict form which says "life imprisonment without parole," no clear violation of law.
Nonparticipation in Daubert hearing & lax challenge to soil samples were strategic choices, not ineffective assistance .
No abuse of discretion in allowing expert to work for both sides.
Aggravating factors did not have to be in the indictment when included in a notice 8 months before trial.
[Thou shalt not kill. - TMB]
Eighth Circuit -- Fond Du Lac Band v. Myron Frans
Fond Du Lac Band v. Myron Frans
Minnesota may tax out-of-state pension monies received by Band members on the reservation.
Constitutional claim - Minnesota and US citizenship, while legislatively allowing for the retention of tribal property, create a nexus sufficient for the state to tax Band members.
Statutory - Off-reservation character of the pension .allows state to tax.
Dissent - Every Single Other Case on the Subject Says You Guys Are Wrong. (Paraphrase, natch.)
Minnesota may tax out-of-state pension monies received by Band members on the reservation.
Constitutional claim - Minnesota and US citizenship, while legislatively allowing for the retention of tribal property, create a nexus sufficient for the state to tax Band members.
Statutory - Off-reservation character of the pension .allows state to tax.
Dissent - Every Single Other Case on the Subject Says You Guys Are Wrong. (Paraphrase, natch.)
Seventh Circuit -- USA v. Kenneth Gaytan
USA v. Kenneth Gaytan
Where the drug buy happens inside a car - outside of video surveillance but within audio surveillance - gov't does not have to call CI who made the buy to establish sufficient evidence.
No confrontation clause issue on taped statements of CI, as although testimonial, they weren't in for the truth of the matter asserted.
No Old Chief-type error in agents testifying to events inside the car as opposed to the CI doing so.
Possible inadmissible expert testimony by agent translating drug argot harmless error.
Where the drug buy happens inside a car - outside of video surveillance but within audio surveillance - gov't does not have to call CI who made the buy to establish sufficient evidence.
No confrontation clause issue on taped statements of CI, as although testimonial, they weren't in for the truth of the matter asserted.
No Old Chief-type error in agents testifying to events inside the car as opposed to the CI doing so.
Possible inadmissible expert testimony by agent translating drug argot harmless error.
Seventh Circuit -- Aurora Blacktop Inc. v. American Southern Insurance
Aurora Blacktop Inc. v. American Southern Insurance
Removal is proper despite lack of party who should be joined, as party was never served in state action - additionally, parties waived the issue by not challenging removal within 30 days.
Under Illinois law, language in the surety must reference third parties in order for them to have third party standing for enforcement - subsequent letters of the direct beneficiary are irrelevant, as the intention at the time of contract is the deciding fact.
Removal is proper despite lack of party who should be joined, as party was never served in state action - additionally, parties waived the issue by not challenging removal within 30 days.
Under Illinois law, language in the surety must reference third parties in order for them to have third party standing for enforcement - subsequent letters of the direct beneficiary are irrelevant, as the intention at the time of contract is the deciding fact.
Sixth Circuit -- In re: Elizabeth Collins
In re: Elizabeth Collins
Bankruptcy trustee's status as a hypothetical judicial lien creditor perfected as the date of filing means that an allegation that another creditor was not perfected as of date of filing means that a 12(b)(6) dismissal of the trustee's assertion of priority is durn wrongheaded.
Ambiguity as to who held the mortgage paper on the date of filing meas that , prior to summary judgment, the court must determine the proper holder at the time.
No error in bankruptcy court setting aside default judgment under 60(b)(6) when all parties agree that the entity had no interest or claim in anything on the date of filing.
Bankruptcy trustee's status as a hypothetical judicial lien creditor perfected as the date of filing means that an allegation that another creditor was not perfected as of date of filing means that a 12(b)(6) dismissal of the trustee's assertion of priority is durn wrongheaded.
Ambiguity as to who held the mortgage paper on the date of filing meas that , prior to summary judgment, the court must determine the proper holder at the time.
No error in bankruptcy court setting aside default judgment under 60(b)(6) when all parties agree that the entity had no interest or claim in anything on the date of filing.
Sixth Circuit -- Pipefitters Local 636 v. Blue Cross Blue Shield of Mich
Pipefitters Local 636 v. Blue Cross Blue Shield of Mich
Class certification reversed - the fact-specific question of whether an entity was acting as an ERISA fiduciary means that the class is not a superior method of adjudication. Given legitimate variation sin facts, non-class action would not subject deft to incompatible standards of conduct/conflicting affirmative duties.
Class certification reversed - the fact-specific question of whether an entity was acting as an ERISA fiduciary means that the class is not a superior method of adjudication. Given legitimate variation sin facts, non-class action would not subject deft to incompatible standards of conduct/conflicting affirmative duties.
Sixth Cicuit -- Dora Giraldo v. Eric Holder, Jr.
Dora Giraldo v. Eric Holder, Jr.
No statutory bar to jurisdiction where IJ grants withholding of removal and BIA reverses and remands for consideration of voluntary departure - th BIA order is sufficiently final. BUT prudential considerations counsel against jurisdiction, since statute forfeits voluntary departure upon filing of appeal, and allowing intermediate appeals would be a means of circumventing this restriction.
No statutory bar to jurisdiction where IJ grants withholding of removal and BIA reverses and remands for consideration of voluntary departure - th BIA order is sufficiently final. BUT prudential considerations counsel against jurisdiction, since statute forfeits voluntary departure upon filing of appeal, and allowing intermediate appeals would be a means of circumventing this restriction.
Sixth Circuit -- Gary Otte v. Mark Houk
Gary Otte v. Mark Houk
No error in State court finding that deft's waiver of trial by jury was sufficiently knowing, despite antipsychotic meds.
No ineffective assistance in not bringing in a substance abuse expert to testify - would have been cumulative.
Not introducing evidence as to upbringing at penalty phase was a strategic choice, not ineffective assistance.
Miranda challenge arguing drug & alcohol withdrawal TKO'd.
[Thou shalt not kill. -TMB]
No error in State court finding that deft's waiver of trial by jury was sufficiently knowing, despite antipsychotic meds.
No ineffective assistance in not bringing in a substance abuse expert to testify - would have been cumulative.
Not introducing evidence as to upbringing at penalty phase was a strategic choice, not ineffective assistance.
Miranda challenge arguing drug & alcohol withdrawal TKO'd.
[Thou shalt not kill. -TMB]
Sixth Circuit -- Sean Taylor v. Kennth T. McKee, Warden
Sean Taylor v. Kennth T. McKee, Warden
Where state has a contemporaneous objection rule, lack of objection defaults subsequent habeus claim.
Ineffective assistance claim can't save the procedural default, as it wasn't exhausted at the state level.
Ineffective assistance claim on collateral attack, claiming that trial-level ineffective assistance wasn't pursued TKO'd as there is no right to appeal counsel.
No requirement that prisons provide those capable of writing legal briefs.
Where state has a contemporaneous objection rule, lack of objection defaults subsequent habeus claim.
Ineffective assistance claim can't save the procedural default, as it wasn't exhausted at the state level.
Ineffective assistance claim on collateral attack, claiming that trial-level ineffective assistance wasn't pursued TKO'd as there is no right to appeal counsel.
No requirement that prisons provide those capable of writing legal briefs.
Labels:
Habeas,
Ineffective Assistance,
Prisoner Litigation
Sixth Circuit -- USA v. Gardner
USA v. Gardner
Categorically, earlier conviction for battery too broad to qualify as a prior for mandatory minimum for possession of child pr0nography.
Procedural problems with state PSR (missing court stamp, no sign that deft assented to terms) mean that it cannot be used to establish the prior.
Categorically, earlier conviction for battery too broad to qualify as a prior for mandatory minimum for possession of child pr0nography.
Procedural problems with state PSR (missing court stamp, no sign that deft assented to terms) mean that it cannot be used to establish the prior.
Sixth Circuit -- USA v. Dawn Hanna
USA v. Dawn Hanna
Misspelling of name in email attachment does not mean that the warrant was groundless.
Email warrant did not have to be pinpont specific or divided by subject of emails.
No error in exclusion for relevance of testimony from head of larger company saying that he had been similarly misled.
Where (90 month) sentencing error results from deft's requests, doctrine of invited error precludes fix on appeal.
National security sentencing bump for violating the Iraq embargo upheld.
No Brady violation.
Where the criminality of the act comes from an executive order, collaboration in the crime by members of the executive does not make it lawful.
Misspelling of name in email attachment does not mean that the warrant was groundless.
Email warrant did not have to be pinpont specific or divided by subject of emails.
No error in exclusion for relevance of testimony from head of larger company saying that he had been similarly misled.
Where (90 month) sentencing error results from deft's requests, doctrine of invited error precludes fix on appeal.
National security sentencing bump for violating the Iraq embargo upheld.
No Brady violation.
Where the criminality of the act comes from an executive order, collaboration in the crime by members of the executive does not make it lawful.
Labels:
Communications /Computers,
Crim,
Fourth Amendment
Fifth Circuit -- USA v. James Brown
USA v. James Brown
(Enron litigation)
Where the evidence is, on its surface, inculpatory, no Brady violation in suppression.
Cumulative evidence insufficient to give a definite and firm conviction of a different outcome - no Brady violation.
(Enron litigation)
Where the evidence is, on its surface, inculpatory, no Brady violation in suppression.
Cumulative evidence insufficient to give a definite and firm conviction of a different outcome - no Brady violation.
Fourth Circuit -- Natalie Dellinger v. Science Applications International
Natalie Dellinger v. Science Applications International
Prospective employee ("contingently approved") cannot claim retaliation under FLSA.
Dissent: The term "employee" is sufficiently broad in the statute.
Prospective employee ("contingently approved") cannot claim retaliation under FLSA.
Dissent: The term "employee" is sufficiently broad in the statute.
First Circuit -- US v. Luna
US v. Luna
Sufficient evidence to find that a local policeman carrying an FBI credential as part of a task force deputation is a federal officer for purposes of statute prohibiting assaulting the Feds.
No reversible error where ammunition is admitted without chain of custody foundation if a subsequent witness testifies to its unique features.
No hearsay in gov't "interstate nexus" expert relying on third-party information.
For ACCA priors - an offense which involves threatening gestures can be an offense which involves the threat or use of force.
Sufficient evidence to find that a local policeman carrying an FBI credential as part of a task force deputation is a federal officer for purposes of statute prohibiting assaulting the Feds.
No reversible error where ammunition is admitted without chain of custody foundation if a subsequent witness testifies to its unique features.
No hearsay in gov't "interstate nexus" expert relying on third-party information.
For ACCA priors - an offense which involves threatening gestures can be an offense which involves the threat or use of force.
Second Circuit -- U.S. v. Simels
U.S. v. Simels
Govt used confidential informant who conversed with the suspect's attorney - led to obstruction of justice charges against atty for attempting to bribe & threaten witnesses.
No holding on whether attorney can assert third-party standing to argue client's 6A harms.
Atty's misrepresentation to prison officials as to another client justified the investigation of the attorney.
No privileged information passed, so no 6A violation.
No error in allowing CI to testify to unrelated intimidation against him.
No error in restricting atty deft to yes/no, in order to diffuse the tension between the witness and the prosecutor.
No error in allowing wiretaps barred by Title III in for impeachment.
As import ban statute prohibits items that "can be used" to do certain things, inoperable objects are not covered.
Sufficient evidence of a substantial step towards witness intimidation.
Where judge agrees to recommend imprisonment at a certain location, and it subsequently comes to light that the location requires a BOP waiver which the judge declines to issue, no error in sentencing under a misapprehension.
Sentence at bottom of range not unreasonable.
Govt used confidential informant who conversed with the suspect's attorney - led to obstruction of justice charges against atty for attempting to bribe & threaten witnesses.
No holding on whether attorney can assert third-party standing to argue client's 6A harms.
Atty's misrepresentation to prison officials as to another client justified the investigation of the attorney.
No privileged information passed, so no 6A violation.
No error in allowing CI to testify to unrelated intimidation against him.
No error in restricting atty deft to yes/no, in order to diffuse the tension between the witness and the prosecutor.
No error in allowing wiretaps barred by Title III in for impeachment.
As import ban statute prohibits items that "can be used" to do certain things, inoperable objects are not covered.
Sufficient evidence of a substantial step towards witness intimidation.
Where judge agrees to recommend imprisonment at a certain location, and it subsequently comes to light that the location requires a BOP waiver which the judge declines to issue, no error in sentencing under a misapprehension.
Sentence at bottom of range not unreasonable.
Labels:
Communications /Computers,
Crim,
Fourth Amendment,
FRE,
Legal Ethics,
Sentencing,
Sufficient Evidence
Thursday, August 11, 2011
Federal Circuit -- HARTFORD FIRE INSURANCE CO. V. U.S.
HARTFORD FIRE INSURANCE CO. V. U.S.
If you're standing surety for a company importing cooked crawdads from China, and some managers of the company get indicted, it's reasonable to let the dust settle for four months or so to see if you need to file for a return of the surety.
Dissent: No it isn't.
If you're standing surety for a company importing cooked crawdads from China, and some managers of the company get indicted, it's reasonable to let the dust settle for four months or so to see if you need to file for a return of the surety.
Dissent: No it isn't.
Federal Circuit -- ARKO FOODS INTERNATIONAL, INC. V. U.S.
ARKO FOODS INTERNATIONAL, INC. V. U.S.
The question of whether something ins an article of milk under the Harmonized Tariff Schedule is answered by asking if it has the essential character of milk.
The question of whether something ins an article of milk under the Harmonized Tariff Schedule is answered by asking if it has the essential character of milk.
Eleventh Circuit -- State Farm Mutual v. Anna N. Duckworth
State Farm Mutual v. Anna N. Duckworth
Claimant's notification of insurance company that she had moved to Florida was insufficient notice of permanent change of address to meet Florida's requirement in the public policy exception in insurance choice of law cases that the resident notify the carrier of new permanent residence. (This so the carrier can know the law under which the policy operates.) SJ appropriate.
Claimant's notification of insurance company that she had moved to Florida was insufficient notice of permanent change of address to meet Florida's requirement in the public policy exception in insurance choice of law cases that the resident notify the carrier of new permanent residence. (This so the carrier can know the law under which the policy operates.) SJ appropriate.
Tenth Circuit -- Tomlinson v. El Paso Corp
Tomlinson v. El Paso Corp
ERISA does not require notification of wear-away periods so long as employees are informed and forewarned of plan changes.
Essentially, when a plan transitions, it takes awhile for monies accrued to catch up to minimum benefits - this period of flat-line benefits can arguably discriminate against older employees.
ERISA does not require notification of wear-away periods so long as employees are informed and forewarned of plan changes.
Essentially, when a plan transitions, it takes awhile for monies accrued to catch up to minimum benefits - this period of flat-line benefits can arguably discriminate against older employees.
Ninth Circuit -- BLUE LAKE RANCHERIA V. USA
BLUE LAKE RANCHERIA V. USA
Exemption from employment tax for Indian tribes refers only to common-law employment not statutory ("employer of record") employment. CCNV factors & Treasury regs used to determine common law employment.
Exemption from employment tax for Indian tribes refers only to common-law employment not statutory ("employer of record") employment. CCNV factors & Treasury regs used to determine common law employment.
Ninth Circuit -- USA V. AGUILA-MONTES DE OCA
USA V. AGUILA-MONTES DE OCA
Court rejects a bright line "missing element" rule for counting priors for sentencing bumps. Instead, wherever the prior offense is categorically broader than the generic offense, a modified-categorical analysis should look to the specific facts found in the earlier conviction. There is no requirement that the prior offense be divisible to invoke the modified-categorical - a broad term in the statute will suffice.
Strongly worded special concurrence - Scotus clear that only divisible (multiple ways of commitin' them) statutes get the modified-categorical treatment.
Another concurrence: Although the majority opinion overrules Navarro-Lopez’s rule regarding our inability to apply the modified categorical approach when a state statute is missing an element of a generic offense, it effectively re-imposes the same missing element rule in applying the modified categorical approach to the facts of this case. According to the en banc opinion, use of the modified categorical approach is precluded if applicable state law contains nuances that differ from the generic definition of the crime. However, Supreme Court precedent does not mandate or counsel such a restrictive approach.
Court rejects a bright line "missing element" rule for counting priors for sentencing bumps. Instead, wherever the prior offense is categorically broader than the generic offense, a modified-categorical analysis should look to the specific facts found in the earlier conviction. There is no requirement that the prior offense be divisible to invoke the modified-categorical - a broad term in the statute will suffice.
Strongly worded special concurrence - Scotus clear that only divisible (multiple ways of commitin' them) statutes get the modified-categorical treatment.
Another concurrence: Although the majority opinion overrules Navarro-Lopez’s rule regarding our inability to apply the modified categorical approach when a state statute is missing an element of a generic offense, it effectively re-imposes the same missing element rule in applying the modified categorical approach to the facts of this case. According to the en banc opinion, use of the modified categorical approach is precluded if applicable state law contains nuances that differ from the generic definition of the crime. However, Supreme Court precedent does not mandate or counsel such a restrictive approach.
Eighth Circuit -- United States v. Donavan Michael Slagg
United States v. Donavan Michael Slagg
No error in district court finding of large conspiracy as opposed to many smaller ones, as interdependence of multiple buyers and sellers indicated a common purpose.
Broke deft posting bail allows jury reasonably to conclude that drug money is being laundered.
No error in not giving instruction that buyer/seller is insufficient for conspiracy, as evidence established that more was going on than buying and selling.
When deft objected to introduction of mug shot but subsequently withdrew the objection, the claim is waived for appeal.
Where consent to forfeiture is predicated on conviction, not relevant which offense is convicted (deft was acquitted of the most seemingly relevant one).
No error in district court finding of large conspiracy as opposed to many smaller ones, as interdependence of multiple buyers and sellers indicated a common purpose.
Broke deft posting bail allows jury reasonably to conclude that drug money is being laundered.
No error in not giving instruction that buyer/seller is insufficient for conspiracy, as evidence established that more was going on than buying and selling.
When deft objected to introduction of mug shot but subsequently withdrew the objection, the claim is waived for appeal.
Where consent to forfeiture is predicated on conviction, not relevant which offense is convicted (deft was acquitted of the most seemingly relevant one).
Eighth Circuit -- United States v. Tamara Lynn Heid
United States v. Tamara Lynn Heid
Error in barring withdrawal of guilty plea, as there was no factual basis in the record for money-laundering charge.
Error in barring withdrawal of guilty plea, as there was no factual basis in the record for money-laundering charge.
Eighth Circuit -- Railroad Salvage & Restoration v. STB
Railroad Salvage & Restoration v. STB
When a court refers an issue to the Surface Transportation Board, the court holds jurisdiction over not just the narrow issue presented, but also, more broadly, from any issues which arise from the issue under consideration.
Potential circuit split with the Great and Powerful (with respect to administrative law) DC Circuit flagged.
When a court refers an issue to the Surface Transportation Board, the court holds jurisdiction over not just the narrow issue presented, but also, more broadly, from any issues which arise from the issue under consideration.
Potential circuit split with the Great and Powerful (with respect to administrative law) DC Circuit flagged.
Eighth Circuit -- Relenthis Blakley v. Schlumberger Technology Corp.
Relenthis Blakley v. Schlumberger Technology Corp.
Award of costs need not be on motion, just a schedule of costs - authorities cited by deft refer to fees, which are different.
12(b) motion granted for not exhausting administrative remedies was not error, as there was sufficient evidence in the public record.
12(b) dismissal as duplicative not erroneous.
Adding a new statutory c/a not kosher after being given leave to amend initial claim.
Summary judgment on Title VII and FMLA was correct.
Award of costs need not be on motion, just a schedule of costs - authorities cited by deft refer to fees, which are different.
12(b) motion granted for not exhausting administrative remedies was not error, as there was sufficient evidence in the public record.
12(b) dismissal as duplicative not erroneous.
Adding a new statutory c/a not kosher after being given leave to amend initial claim.
Summary judgment on Title VII and FMLA was correct.
Eighth Circuit -- Dakota, MN & Eastern R.R. v. Kevin Schieffer
Dakota, MN & Eastern R.R. v. Kevin Schieffer
(W)e conclude that an individual contract providing severance benefits to a single executive employee is not an ERISA employee welfare benefit plan within the meaning of 29 U.S.C. § 1002(1)
Remanded for consideration of whether payments at time of severance functioned as ERISA payments and therefore give jurisdiction under "relating to" jurisdictional grant of statute.
(W)e conclude that an individual contract providing severance benefits to a single executive employee is not an ERISA employee welfare benefit plan within the meaning of 29 U.S.C. § 1002(1)
Remanded for consideration of whether payments at time of severance functioned as ERISA payments and therefore give jurisdiction under "relating to" jurisdictional grant of statute.
Eighth Circuit -- Owner-Operator Independent v. Supervalu, Inc
Owner-Operator Independent v. Supervalu, Inc
Where truckers incur special costs in offloading at a certain depot, they have an affirmative duty to prove that no third party (e.g., the shipper) has reimbursed their costs before invoking a statutory c/a.
Extensive discussion of legislative intent/ statutory construction.
Concurrence: There is no statutory c/a.
Where truckers incur special costs in offloading at a certain depot, they have an affirmative duty to prove that no third party (e.g., the shipper) has reimbursed their costs before invoking a statutory c/a.
Extensive discussion of legislative intent/ statutory construction.
Concurrence: There is no statutory c/a.
Eighth Circuit -- United States v. Vincent Johnson
United States v. Vincent Johnson
No error in upward departure from guidelines because range insufficiently describes criminal history when such history is barred from consideration by guidelines. (remoteness)
Reasonable, sufficiently explained.
No error in upward departure from guidelines because range insufficiently describes criminal history when such history is barred from consideration by guidelines. (remoteness)
Reasonable, sufficiently explained.
Seventh Circuit -- USA v. Scott Johnson
USA v. Scott Johnson
When you have a CI who says he bought drugs from deft at deft's house four times in the last week, you have enough for a search warrant.
No error in trial court not giving a special credibility instruction, as court is in best place to judge.
Where prosc. in opening says deft had 5kg of cocaine, but then immediately corrects it to 1/2kg, no error in denying mistrial. (Record established that 5KG had been there the night before.)
Prohibition in Sarbanes-Oxley on destruction of documents & objects can be used against deft who tries to destroy cocaine base before police get to it - it merely has to be relevant to a possible future court proceeding.
Said destruction properly referenced at sentencing to base offense of conspiracy, not possession.
When you have a CI who says he bought drugs from deft at deft's house four times in the last week, you have enough for a search warrant.
No error in trial court not giving a special credibility instruction, as court is in best place to judge.
Where prosc. in opening says deft had 5kg of cocaine, but then immediately corrects it to 1/2kg, no error in denying mistrial. (Record established that 5KG had been there the night before.)
Prohibition in Sarbanes-Oxley on destruction of documents & objects can be used against deft who tries to destroy cocaine base before police get to it - it merely has to be relevant to a possible future court proceeding.
Said destruction properly referenced at sentencing to base offense of conspiracy, not possession.
Seventh Circuit -- Paula Jackson v. Indian Prarie School
Paula Jackson v. Indian Prarie School
Where a school places a violent, disabled student in a one-person classroom and the student later TKO's the teacher with a chair, the teacher has no S1983 claim under substantive due process against the school, as the setup was insufficiently conscience-shocking.
Where a school places a violent, disabled student in a one-person classroom and the student later TKO's the teacher with a chair, the teacher has no S1983 claim under substantive due process against the school, as the setup was insufficiently conscience-shocking.
Sixth Circuit -- Stumpf v. Houk
Stumpf v. Houk
Lack of due process challenge in the District Court record does not mean that court of appeals cannot consider DP, as per Scotus remand instruction, as the issue was raised in passing in the habeus petition.
State earlier waived procedural default argument vs. DP challenge.
Teague bar on retroactivity of new criminal rules is not jurisdictional.
Suggesting in closing that deft was the principal actor in the murder, where state has evidence and belief that a different deft was the central actor is a "constitutional violation" which prejudices sentencing.
Dissent: Conviction was by best information available at the time, Teague bars creation of a new substantive right.
Volokh has more here.
[Thou shalt not kill. -TMB]
Lack of due process challenge in the District Court record does not mean that court of appeals cannot consider DP, as per Scotus remand instruction, as the issue was raised in passing in the habeus petition.
State earlier waived procedural default argument vs. DP challenge.
Teague bar on retroactivity of new criminal rules is not jurisdictional.
Suggesting in closing that deft was the principal actor in the murder, where state has evidence and belief that a different deft was the central actor is a "constitutional violation" which prejudices sentencing.
Dissent: Conviction was by best information available at the time, Teague bars creation of a new substantive right.
Volokh has more here.
[Thou shalt not kill. -TMB]
Sixth Circuit -- USA v. Darrell Walker
USA v. Darrell Walker
Error for sentence for escape, as it was revised upwards from guidelines to promote inmate's rehabilitation.
Error for sentence for escape, as it was revised upwards from guidelines to promote inmate's rehabilitation.
Fifth Circuit -- Jane Doe, et al v. Covington County Sch Dist, et al
Third Circuit -- William Morgan v. Covington Twp
First Circuit -- Contour Design Inc. v. Chance Mold Steel Company Ltd
Contour Design Inc. v. Chance Mold Steel Company Ltd
No error in issuance of preliminary injucntion where then supported in record - court here defers to judgment of lower court, as the action on the merits has completed, and emphasises that the lower court is free to convert the preliminary injunction into permanent relief even while parties seek direct appeals.
No error in issuance of preliminary injucntion where then supported in record - court here defers to judgment of lower court, as the action on the merits has completed, and emphasises that the lower court is free to convert the preliminary injunction into permanent relief even while parties seek direct appeals.
First Circuit -- National Organization For Marriage v. Daluz
National Organization For Marriage v. Daluz
No error in denial of injunction - vagueness and free speech challenges.
Free speech - sufficient government interest to justify the disclosure requirements.
Vagueness - merely requires interpretation.
See Other NOM case filed today for expanded rationale.
No error in denial of injunction - vagueness and free speech challenges.
Free speech - sufficient government interest to justify the disclosure requirements.
Vagueness - merely requires interpretation.
See Other NOM case filed today for expanded rationale.
First Circuit -- National Organization For Marr v. McKee
National Organization For Marr v. McKee
National organization does not have standing to challenge state regulations of major-purpose PACS, as the major purpose of the organization is not intervention in that particular state's affairs.
National organization has standing to challenge non-major-purpose PAC laws, given self-censorship in recent campaign.
National organization has standing to challenge out-of-state PAC laws.
Even though plaintiff's actual conduct was clearly within the ambit of the statute, forgone/chilled conduct grants standing to challenge vagueness.
Extensive discussion of issue advocacy versus candidacy support - ultimately held to be irrelevant to overbreadth.
State law defining PAC's and regulating disclosure held to exacting (intermediate - substantial connection to legit end) scrutiny, not strict scrutiny. No burden in being labeled a PAC.
State interest in dissemination of information means that the definition of PACs is not overbroad.
$100 trigger for independent expenditure reporting constitutional despite not being indexed to inflation.
Minimal attribution and disclaimer regs kosher after Citizens United.
Terms used in Act not unconstitutionally vague under due process.
Where parties stipulate that certain parts of the record are to be sealed, no error in court ordering opening of entire trial record, absent proof of harm from parties. Presumption is for openness.
National organization does not have standing to challenge state regulations of major-purpose PACS, as the major purpose of the organization is not intervention in that particular state's affairs.
National organization has standing to challenge non-major-purpose PAC laws, given self-censorship in recent campaign.
National organization has standing to challenge out-of-state PAC laws.
Even though plaintiff's actual conduct was clearly within the ambit of the statute, forgone/chilled conduct grants standing to challenge vagueness.
Extensive discussion of issue advocacy versus candidacy support - ultimately held to be irrelevant to overbreadth.
State law defining PAC's and regulating disclosure held to exacting (intermediate - substantial connection to legit end) scrutiny, not strict scrutiny. No burden in being labeled a PAC.
State interest in dissemination of information means that the definition of PACs is not overbroad.
$100 trigger for independent expenditure reporting constitutional despite not being indexed to inflation.
Minimal attribution and disclaimer regs kosher after Citizens United.
Terms used in Act not unconstitutionally vague under due process.
Where parties stipulate that certain parts of the record are to be sealed, no error in court ordering opening of entire trial record, absent proof of harm from parties. Presumption is for openness.
First Circuit -- Precetaj v. Holder, Jr.
Precetaj v. Holder, Jr.
Given that IJ found applicant's story of scattered abuses to be true, infiltration of foreign police and abuse of family members should counsel for grant of asylum - vacated and remanded.
Given that IJ found applicant's story of scattered abuses to be true, infiltration of foreign police and abuse of family members should counsel for grant of asylum - vacated and remanded.
First Circuit -- US v. Shields
US v. Shields
Federal civil commitment statute generally constitutional - possible interbranch delegation issue described as underbriefed & therefore waived.
De minimis error in date of filing of government petition does not bar commitment. (Act specifies that inmate must be under control of the BOP, papers were filed the day after end of sentence)
Given priors and 2/3rds of shrinks' verdicts, no error in finding of dangerousness.
Federal civil commitment statute generally constitutional - possible interbranch delegation issue described as underbriefed & therefore waived.
De minimis error in date of filing of government petition does not bar commitment. (Act specifies that inmate must be under control of the BOP, papers were filed the day after end of sentence)
Given priors and 2/3rds of shrinks' verdicts, no error in finding of dangerousness.
Second Circuit -- Williams v. Citigroup
Williams v. Citigroup
No obligation to file a motion to amend the pleadings with initial answer or prior to entry of judgment on a 12(b)6 - a postjudgment motion to that effect should be granted where amendment can cure the defects of the pleading.
(Reasons - FRCP directive on liberal granting of leave to amend & desire of courts to answer questions on the merits. )
No obligation to file a motion to amend the pleadings with initial answer or prior to entry of judgment on a 12(b)6 - a postjudgment motion to that effect should be granted where amendment can cure the defects of the pleading.
(Reasons - FRCP directive on liberal granting of leave to amend & desire of courts to answer questions on the merits. )
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